Court Based Financial Disputes Resolution
What is Financial Disputes Resolution, Court based?
An FDR (Financial Disputes Resolution) is a formal hearing before a Judge when the Judge hears a summary presentation of each side’s case and gives “early neutral evaluation” of the likely outcome if the case were to proceed to a final hearing. Following an indication from the Judge the parties aim to negotiate a tailor-made solution for themselves aided by an understanding of what a court might be likely to order if the case went to a final hearing.
Advantages of Financial Disputes Resolution
- Strict court deadlines: Prevents a party from intentionally delaying the proceedings
- The parties hear at first hand from the judge the likely approach the court will take at a final hearing which can assist in negotiations.
Disadvantages Financial Disputes Resolution
- Considerable delay: With the pressure on courts increasing, cases are taking longer to get a hearing, and judges are being allowed less time to hear and consider them
- Cancellation: When FDR hearings are cancelled at short notice, which is not uncommon, both parties have usually already incurred considerable time and expense preparing for the hearing and instructing Counsel to represent them, which they will not get back. There can then be a considerable delay for the case to be relisted
- Limited court time, hearings are listed for 1 hour court time, negotiations can take place before and after but without the judges assistance.
Average cost = From the First Directions Appointment, up to and including the Financial Disputes Resolution Hearing, costs incurred of £3,000 to £5,000 plus VAT plus disbursements. If a barrister is required to assist, fees are usually in the region of £800.00 to £2,000 plus VAT.
Private Financial Disputes Resolution
What is it Financial Disputes Resolution, Private
The parties pay for a financial remedy specialist (usually a solicitor or barrister who sits as a part time Family Court Judge or a retired Judge) to act as a private FDR judge. The private FDR takes place at a time convenient to the parties, usually in solicitors’ offices or barristers’ chambers, and a full day is normally set aside to maximise the prospects of settlement. It takes the place of the in-court FDR.
Parties who are already in the court process can opt for a private FDR instead of a court FDR. Those who have not started court proceedings can also agree to attend a private FDR once they have exchanged disclosure on a voluntary basis without having to issue a court application.
- Success rate: Success rate of 80-90% in achieving a settlement
- Effective consideration: Involves an expert selected by the parties who will have read the papers thoroughly in advance and who will be able to give the parties the time which they may need to resolve the dispute
- Speed: Can provide a date without delay and an appointment of flexible duration convenient to the parties
- Cost: FDR judge is likely to be £2,500 to £4,000 plus VAT parties also pay for their own legal representative (solicitor or barrister the cost is likely to be the same in the court based FDR
- Less formal: A more relaxed environment is more conducive to reaching settlement.
Disadvantages of a Financial Disputes Resolution, Private
- Cost: Unlike with a court FDR there is the additional cost of the private FDR judge’s fees
- Moving forward: The selected private FDR judge is not able to make any orders or directions. They cannot deal with case management decisions if an agreement cannot be reached, nor can they make a final order at the conclusion of the hearing
- If settlement is not reached there can be considerable delay reverting to the court process and an interim directions hearing may be required
- Disclosure: May not be appropriate if one party is refusing to provide full and frank disclosure, as this will be required to ensure an effective hearing can take place.
Average Cost = £2,000-£5,000 + VAT for a 1-day Financial Disputes Resolution private hearing including preparation.
What is Arbitration?
It is a consensual system whereby all parties must agree to submit the dispute in question to the arbitrator. Like a judgement, the decision of an arbitral tribunal is final and binding. However, arbitration differs fundamentally from the court system in the following ways:
- Contractual basis - The rights and obligations of the parties throughout the process are governed by the arbitration agreement which they have created
- Appointment - The parties can choose the arbitrator that will hear and ultimately decide on their dispute
- Confidentiality - Arbitration proceedings are confidential.
The process differs from mediation in that rather than focusing on helping the parties to reach agreements, an arbitrator will listen to both viewpoints and concerns and will make a decision based on what they think is the most suitable way to move forward.
Advantages of Arbitration
- Flexibility: Parties can agree a timetable that suits them, which venue or whether to meet face to face or in writing
- Choice of arbitrator: Assurance that the arbitrator specialises exclusively in the area of family law they need and has the necessary expertise to understand all the issues involved – this is particularly helpful with issues such as business assets, or agricultural
- Speed: the dispute could be resolved within weeks (rather than the 18 months to 2 years which is typical in the court system because of current delays).
Disadvantages of Arbitration
- The final decision is binding: It is only possible to appeal the decision if the arbitrator has made a mistake or misapplied the law, not just because you do not like the outcome
- Costs: The preparation costs and the need to fund the attendance of a barrister are like that of a final hearing, but you also have the additional costs associated with paying for the arbitrator and venue
- No enforceable disclosure: No obligation to provide full and frank disclosure which means that one party could be hiding assets that would not be accounted for in the final decision.
Average Cost = £1,000 – £3,000 plus VAT per person for the arbitrators time.
If you require further legal advice, please contact one of our experienced solicitors by emailing firstname.lastname@example.org who would be happy to assist.
The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute, legal advice, and should not be relied upon as advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article. All content was correct at the time of publishing. Legal advice should always be sought in relation to specific circumstances.